Getting it right from the start

10 Jul 2018

Getting it right from the start

10 Jul 2018

BULLYING: the mere word sends shivers down the spines of HR practitioners across our country. This reaction is not because the thought that someone has been bullied creates an immediate deep concern for that person (or a group of persons), as it should, but because the ‘bullying’ card is rolled out all too often in the workplace.

Overuse of the term ‘bullying’ has had the unfortunate effect of causing practitioners to first ask: “Is it really?” And it can also lead to the poor management of a complaint at the front end of a process, tainting an investigation and sometimes the outcome too!

Often the most important aspect of a complaint is how you respond to it in the preliminary stages. It is a mistake to let that little voice in your head drive the way in which you respond. The first rule is ‘Treat every complaint as a serious complaint and respond accordingly’. What this means is:

Treat the complainant with respect and ensure they understand that you are taking their complaint seriously.

Consider alternative work arrangements to ensure the health and safety of all concerned (complainant(s) and respondent(s) alike). Be careful not to treat the complainant in a way that is likely to be viewed as detrimental to them (unless it is absolutely necessary to do so) and at the same time treat any respondent(s) as fairly as you can. Any detrimental treatment can later feed into a claim that an investigation was predetermined (keeping in mind that suspension with pay may be a necessary arrangement where the conduct is serious enough and/or the risks cannot be reasonably managed otherwise).

Immediately scope the investigation from a resourcing perspective. Don’t let the cost of outsourcing an investigation drive the decision to keep it in-house; the commercial impact and costs of a poorly resourced and/or planned investigation will far outweigh any cost-saving of keeping it in-house (although many investigations can of course be conducted in-house).

Be sure to document your thought process to ensure you can prove later on that your motivations were lawful – if you have any doubts about that, ensure you consult external advisers (business chamber, lawyers, consultants). A third-party adviser will usually offer ‘fresh eyes’ and an impartial view.

You might also consider involving third-party bodies or regulators if the matter might constitute conduct more serious than the usual bullying complaints – for example, sexual harassment or more serious criminal allegations such as assault. The police might be an option if you believe criminal conduct has taken place.

Consider whether a mediator is likely to assist, but be careful not to jump too quickly to mediation where an investigation should take place, and certainly do not walk away from a failed mediation with the view that attempted mediation is enough. A failed mediation can be just as compromising as failing to respond to a complaint appropriately or failing to act at all.

Make sure you follow all reasonable leads during an investigation. If you ignore aspects of respondent’s response without following them up, this can later feed into a claim that the investigation was flawed. However, there does need to be a balanced approach and you do not want an investigator ‘chasing every rabbit down every hole’ (a diversionary tactic some respondents use).

Throughout the investigation, ensure you review work arrangements to ensure complainants and respondents alike are being treated as fairly as is appropriate in the circumstances. Do not leave respondents on suspension for days and weeks without contact; this will likely lead to significant anxiety and could do far more damage to the employment relationship (if it is to continue).

Make sure the investigation is conducted as quickly as is reasonable in the circumstances, without compromising its integrity.

Make sure respondents are given sufficient information to ensure they can adequately respond to allegations made against them. This means dates, times, locations, persons present, and anything the respondent is alleged to have said (where it forms part of an allegation) should be put in direct speech and not general terms.

Finally, you are not usually obliged to issue an investigation report but it is important that complainants and respondents are appraised of the outcomes. Don’t let false concepts of ‘privacy’ lead to a complainant being left hanging about whether their ‘bully’ has been appropriately sanctioned.

If this article has raised any concerns for your business, or if you need help with a workplace investigation, get in touch with Joe Murphy on 1300 565 846 or via email joe.murphy@ablawyers.com.au.